Defining the badges and incidents of slavery requires an examination of the nexus between group history and the nature and genesis of the complained of injury or condition. In other words, as the group’s link to slavery grows more attenuated, the nature of the injury must be more strongly connected to the system of slavery to be rationally considered a badge or incident thereof. Conversely, where the harm suffered is less directly traceable to the system of slavery, the injured party must be able to show that her group’s current status, history, and societal perception are sufficiently similar to those actually enslaved such that inequality arising out of or based upon that status is an outgrowth or legacy of slavery.
The Supreme Court has held that the Thirteenth Amendment prohibits slavery or involuntary servitude and also empowers Congress to end any lingering badges and incidents of slavery. The Court, however, has failed to provide any guidance as to how courts should define the badges and incidents of slavery absent such congressional action. This has led the lower courts to conclude that the judiciary’s role under the Thirteenth Amendment is limited to enforcing only the Amendment’s prohibition of literal enslavement.
This Article has two primary objectives. First, it offers an interpretive framework for defining the badges and incidents of slavery that is true to both the Amendment’s drafters’ original purposes and that can also serve as a vibrant remedy for the legacies of slavery. The Thirteenth Amendment should neither be construed as a dead letter whose purpose was served with the removal of the freedmen’s bonds nor as a limitless remedy for all forms of discrimination.
Rather, the Amendment must be interpreted in an evolutionary manner, but with specific regard to the experience of the victims of human bondage in the United States (i.e., African Americans) and the destructive effects that the system of slavery had upon American society, laws, and customs. Second, this Article explains that the judiciary has concurrent power with Congress to define and offer redress for the badges and incidents of slavery. Limiting the Amendment, in the absence of congressional action, to literal enslavement ignores the Amendment’s framers’ expressed original intent that the Amendment itself would eliminate all lingering vestiges of the slave system. Furthermore, such an interpretation violates separation of powers principles by imputing to Congress the ability to legislate under the Amendment’s Enforcement Clause against conditions that purportedly do not violate the Amendment itself in any way. Even in the absence of congressional action, the judiciary should enforce the Thirteenth Amendment’s promise to eliminate the badges and incidents of slavery.